Ford v. Rensselaer Polytechnic Institute
MEMORANDUM-DECISION & ORDER: It is Ordered that Defendant Rensselaer Polytechnic Institute's # 30 Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART; Plaintiffs' Count IX conversion claim is DISMISSED; Plaintiffs 039; Count X claim under New York General Business Law §§ 349 and 350 is DISMISSED; and Defendant Rensselaer Polytechnic Institute's motion regarding plaintiffs' claims under Counts: (I) breach of contract for the purported tuitio n class; (II) unjust enrichment for the purported tuition class; (III) breach of contract for the purported fees class; (IV) unjust enrichment for the purported fees class; (V) breach of contract for the purported housing class; (VI) unjust enrichmen t for the purported housing class; (VII) breach of contract for the purported meal plan class; (VIII) unjust enrichment for the purported meal plan class; and (XI) for promissory estoppel across all classes is DENIED and those claims may proceed to discovery. Signed by Judge David N. Hurd on 12/16/2020. (jmb)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------MORGAN FORD, individually and on behalf
of all others similarly situated; ETHAN
DEECHER, individually and on behalf of all
others similarly situated; and GRADY HABICHT,
individually and on behalf of all others similarly
RENSSELAER POLYTECHNIC INSTITUTE,
ANASTOPOULO LAW FIRM
Attorneys for Plaintiffs
32 Ann Street
Charleston, South Carolina 29403
ERIC POULIN, ESQ.
ROY T. WILLEY, IV, ESQ.
LYNN LAW FIRM, LLP
Attorneys for Plaintiff Ford
M&T Bank Building
101 South Salina Street, Suite 750
Syracuse, New York 13202
KELSEY W. SHANNON, ESQ.
TOPTANI LAW PLLC
Attorneys for Plaintiff Ford
375 Pearl Street Suite 1410
New York, New York 10038
EDWARD TOPTANI, ESQ.
MOREA SCHWARTZ BRADHAM FRIEDMAN
& BROWN LLP
Attorneys for Plaintiff Ford
444 Madison Avenue, 4th Floor
New York, New York 10022
JOHN McLEOD BRADHAM, ESQ.
PETER BRYAN KATZMAN, ESQ.
DREYER BOYAJIAN LLP
Attorneys for Plaintiffs Deecher and Habicht
75 Columbia Street
Albany, New York 12210
DONALD W. BOYAJIAN, ESQ.
JAMES R. PELUSO, JR., ESQ.
JOSHUA R. FRIEDMAN, ESQ.
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 2 of 23
BOND SCHOENECK & KING, PLLC
Attorneys for Defendant
One Lincoln Center
Syracuse, New York 13202
JONATHAN B. FELLOWS, ESQ.
SUZANNE M. MESSER, ESQ.
PATTISON, SAMPSON LAW FIRM
Attorneys for Defendant
P.O. Box 208
22 First Street
Troy, New York 12181
MICHAEL E. GINSBERG, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
It barely needs mentioning that the daily life of a vast majority of Americans—and
indeed, human beings—before the COVID-19 pandemic seems foreign to the way we now
must live in the middle of it. Higher education has not been spared. Countless students were
sent home from colleges and universities mid-semester, including the students attending
defendant Rensselaer Polytechnic Institute ("RPI" or "defendant"). Although their education
continued remotely, to at least some of those students online learning was apparently less
than they bargained for.
Now three of RPI's students, Morgan Ford ("Ford"), Ethan Deecher ("Deecher"), and
Grady Habicht ("Habicht", together "plaintiffs") have sued defendant for breach of contract
and other New York torts in the hopes of recovering in some measure the difference between
the on-campus education they expected and the online schooling they received. Defendant
disputes plaintiffs' claims and to that end has moved for judgment on the pleadings under
Federal Rule of Civil Procedure ("Rule") 12(c). That motion, having been fully briefed, will
now be decided on the parties' submissions and oral arguments.
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Plaintiffs Ford, a New Jersey resident, Deecher, a Massachusetts resident, and
Habicht, a Connecticut resident, are all undergraduate students currently enrolled at RPI.
Dkt. 28 ("Compl."), ¶¶ 10-15. 1 Plaintiffs allege that they were drawn to defendant in part
because of "The Rensselaer Plan 2024" (the "Plan"), a framework of programs, some
enacted, some yet hypothetical, designed to afford its students a unique educational
experience. Id. ¶¶ 28-29, 31. The language of the Plan has a flavor of commitment, and
most of its substantive clauses begin with the phrase "we will." See Dkt. 28-1, passim.
Of particular relevance, RPI claims in the Plan that it "will . . . [o]ffer a complete student
experience, highlighted by[ ] Clustered Learning, Advocacy, and Support for Students"
("CLASS"). Dkt. 28-1, p. 6. 2 Defendant's CLASS program, which it has actively incorporated
into student life, is designed to improve counseling, academic skill development, community
building, and other purported benefits that "originate within the residential setting." Id. at 12,
see Compl. ¶ 41 (describing CLASS as an operational and ongoing program). Defendant's
catalog defines the CLASS program as "built around a time-based clustering and residential
commons program." Dkt. 29-1. To help facilitate CLASS, defendant mandates that all
first- and second-year students, as well as transfer students, live on campus. Compl. ¶ 131.
In addition to the CLASS program, RPI has another program that it refers to as "The
Arch." Compl. ¶ 44. The Arch requires all second-year students to live on-campus during the
summer between their second and third years. Id. During that summer, the students take
focused classes that are intended to afford more meaningful interaction with defendant's
professors. Id. ¶ 47. After completing the Arch, third-year students typically spend their fall
1 As is appropriate on a Rule 12(c) motion, the facts are taken from "the complaint, the answer, any written
documents attached to them, and any matter of which the court can take judicial notice." L-7 Designs, Inc. v.
Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (internal quotation marks and citations omitted).
2 Pagination corresponds with CM/ECF.
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semester away from campus in internships or other experiential learning environments to
facilitate post-graduate employment opportunities. Id. ¶ 49.
As is the case with so many areas of life, however, the COVID-19 pandemic drastically
changed the way RPI's 2020 programs would proceed. On March 10, 2020, due to concerns
about the spread of the virus, defendant cancelled all university-sponsored events.
Compl. ¶ 73. On March 11, 2020, defendant required students to move out of on-campus
housing. Id. ¶ 75. Although defendant eventually issued refunds for Spring 2020 room and
board fees after having required its students to move out early, defendant reduced these
reimbursements by the net of a reimbursed student's financial aid. Id. ¶ 85. Effective March
16, 2020, defendant moved all classes exclusively online. Id. ¶ 74. Nevertheless, rising
third-year students were still required to complete the Arch online, even though it would no
longer provide the in-person experience it originally intended. Id. ¶ 80.
Plaintiffs allege that because RPI cancelled all activities and in-person instruction, they
were deprived of the benefit of the on-campus education, activity fees, housing fees, and
meal allowances for which they had paid in full before the semester began. Compl. ¶¶ 77,
On April 25, 2020, Ford filed the present class action complaint in this District. Dkt. 1.
Deecher and Habicht filed their own complaints on May 4, 2020. On September 10, 2020, all
three plaintiffs filed a consolidated amended complaint, the current operative pleading.
Dkt. 28. The amended complaint states eleven causes of action, eight of which state putative
class allegations: (I & II) breach of contract or in the alternative unjust enrichment on behalf
of a class of those who paid tuition for students for the Spring 2020 or Arch 2020 semesters;
(III & IV) breach of contract or in the alternative unjust enrichment for a class of those who
paid fees for students for the Spring 2020 or Arch 2020 semesters; (V & VI) breach of
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contract or in the alternative unjust enrichment for a class of those who paid for on-campus
housing for students during the Spring 2020 semester; (VII & VIII) breach of contract or in the
alternative unjust enrichment for a class of those who paid for students' meal plans for the
Spring 2020 semester; (IX) conversion; (X) violation of N.Y. GEN. BUS. LAW §§ 349 ("§ 349")
and 350 ("§ 350"); and (XI) promissory estoppel. Compl. pp. 22-54.
On October 9, 2020, RPI answered the amended complaint. Dkt. 29. Four days later,
on October 13, 2020, defendant filed the present motion for judgment on the pleadings under
Federal Rule of Civil Procedure ("Rule") 12(c). Dkt. 30. On December 3, 2020, the parties
presented oral argument. Text Minute Entry dated 12/3/2020.
Rule 12(c) allows a party to move for judgment on the pleadings, so long as it does so
early enough not to delay trial. FED. R. CIV. P. 12(c). In most material respects, the Rule
12(c) standard is the same as the familiar failure to state a claim standard under Rule
12(b)(6). See, e.g., Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).
"To survive a Rule 12(b)(6) motion to dismiss, the '[f]actual allegations must be enough
to raise a right to relief above the speculative level.'" Ginsburg v. City of Ithaca, 839 F. Supp.
2d 537, 540 (N.D.N.Y. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Instead, the complaint must contain sufficient factual matter that it presents a claim to relief
that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In assessing the plausibility of the plaintiff's complaint, "the complaint is to be
construed liberally, and all reasonable inferences must be drawn in the plaintiff's favor."
Ginsburg, 839 F. Supp. 2d at 540. The complaint may be supported by "any written
instrument attached to it as an exhibit, materials incorporated in it by reference, and
documents that, although not incorporated by reference, are 'integral' to the complaint." L-7
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Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004)).
RPI has moved to dismiss plaintiffs' amended complaint in its entirety. Defendant
argues five major points: (1) plaintiffs have failed to allege a specific contractual promise
defendant breached to sustain their breach of contract claims; (2) plaintiffs' unjust enrichment
claims are duplicative of their breach of contract claims and fail to prove that justice requires
plaintiffs to be repaid; (3) plaintiffs' conversion claims are also duplicative and fail to identify a
property interest of which plaintiffs were deprived; (4) plaintiffs' General Business Law claims
fail to allege a deceptive practice; and (5) plaintiffs have not alleged that defendants
breached a clear and unambiguous promise.
A. Breach of Contract (Counts I, III, V, and VII).
To survive a motion to dismiss, a breach of contract claim need only allege: (1) the
existence of an agreement; (2) adequate performance of that agreement by the plaintiff;
(3) breach of the agreement by the defendant; and (4) resulting damages. Harsco Corp. v.
Segui, 91 F.3d 337, 348 (2d Cir. 1996). Specific to universities, an implied contract "is
formed when a university accepts a student for enrollment[.]" Papelino v. Albany Coll. of
Pharmacy, 633 F.3d 81, 93 (2d Cir. 2011).
That implied contract tasks a student with complying with the university's terms and
completing its required courses, and in return the student is awarded a degree. Papelino,
633 F.3d at 93. But also implicit in that contract is a requirement that the university "act in
good faith in its dealing with its students." Id. (citing Olsson v. Bd. of Higher Educ.,
402 N.E.2d 1150, 1153 (N.Y. 1980)).
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However, "[t]he application of contract principles to the student-university relationship
does not provide judicial recourse for every disgruntled student." Faiaz v. Colgate Univ., 64
F. Supp. 3d 336, 359 (N.D.N.Y. 2014). Instead, "only specific promises . . . in a school's
bulletins, circulars[,] and handbooks, which are material to the student's relationship with the
school," are enforceable." Keefe v. N.Y. Law School, 897 N.Y.S.2d 94, 95 (Sup.
Ct. App. Div. 1st Dep't 2010). In other words, "[g]eneral policy statements and broad and
unspecified procedures and guidelines will not suffice." Doe v. Syracuse Univ., 440
F. Supp. 3d 158, 175 (N.D.N.Y. 2020) (internal citations and quotation marks omitted).
RPI's arguments proceed across five vectors. The first is that the contractual nature of
a student's relationship to an educational institution is limited to only specific promises in the
university's bulletins, circulars, and regulations. To hear defendant tell it, plaintiffs have failed
to point to any promise in such a document that defendant has broken. Instead, the only
promise defendant sees is a generalized agreement to pay for tuition, which it defines as
payment for instruction. By continuing to instruct its students, defendant argues that it has
upheld its end of the bargain.
To that end, RPI relied in large part at oral argument on Maas v. Cornell University.
721 N.E.2d 966 (N.Y. 1999). The Maas court affirmed a lower court's denial of judicial review
of a contractual dispute between a school and a tenured professor. Id. at 967. In doing so, it
noted that "[c]ourts retain a restricted role in dealing with and reviewing controversies
involving colleges and universities" because educational institutions "are peculiarly capable of
making the decisions which are appropriate and necessary to their continued existence." Id.
Maas's use is somewhat limited. After all, there is precious little similarity between
students asserting a breach of contract claim and a professor asking a court to take up a
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judicial review of a school's administrative decision. Maas, 721 N.E.2d at 967. Nevertheless,
the Court of course acknowledges that its review of plaintiffs' contractual claims is
circumscribed to enforcing specific promises.
RPI has repeatedly insisted that plaintiffs have identified no such promise. But
plaintiffs claim they have pointed at two. Their first candidate, an implied promise for
on-campus education based on the nature of defendant's dealings with the school, does not
withstand scrutiny. As defendant pointed out both on the papers and at oral argument,
breach of contract actions between a student and a school must be grounded in a text, such
as a school's bulletins, handbooks, catalogs, or circulars, or else courts should decline to
involve themselves. See, e.g., Keefe, 897 N.Y.S.2d at 95; Maas, 721 N.E.2d at 968-69. In
light of existing precedent, such an esoteric contract claim cannot be sustained.
But plaintiffs' submissions do provide for one alternative source of a specific promise:
RPI's CLASS program, which is described at length in defendant's circulars, including the
Plan and catalog. According to plaintiffs, defendant's publications describe a (mandatory)
on-campus learning experience that is integral to attending its school.
Nevertheless, RPI argues that it is improper to rely on the Plan as a basis for a specific
promise, because the Plan merely sets goals, not policy. Plaintiffs dispute defendant's
characterization of the Plan as aspirational ideas, because the Plan's tone is consistently
declaratory, with several of its statements beginning with the phrase "we will."
RPI's arguments concerning the Plan must be rejected. At the outset, whether the
Plan could adequately provide a promise is largely beside the point. Defendant's catalog
describes the CLASS program in much the same terms as the Plan. That document's claims
that the CLASS program provides a "time-based clustering and residential commons
program" touted as an "award-winning First-Year Experience" that "extends learning across
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the spectrum of student residential life" fits the bill of a specific promise in any case, at least
for the purposes of a Rule 12(c) motion. Dkt. 29-1; Andre v. Pace Univ., 655 N.Y.S.2d 777,
779 (Sup. Ct. App. Div. 2d Dep't 1996) ("The rights and obligations of the parties, as
contained in the university's bulletins and catalogs[,] became a part of the parties'
contract . . . .").
But in any case, the Plan is similarly qualified to provide a specific promise to support
plaintiff's claims at this stage. At least for the purposes of a Rule 12(c) motion, the Plan
qualifies as a circular, and thus would be eligible to present a specific promise to support
plaintiff's claim. 3
Even if the Plan is the right type of document to provide a promise, RPI argues that the
Plan amounts only to aspirational goals and statements of policy, which it claims cannot
support a specific promise. In making that argument, defendant relies on cases striking down
breach of contract claims based on anti-discrimination policies and declarations involving
vague terms such as "fair and equal treatment." See, e.g., Faiaz, 64 F. Supp. 3d at 359-60
(rejecting as promise requirement that "standards of consistency and equity in disciplinary
proceedings are maintained" (cleaned up)).
But generic statements like those are of an entirely different character than the specific
programs the Plan formulates. Although it may lay out some objectives defendant only hopes
to achieve, RPI has implemented parts of the Plan—and especially the CLASS programs.
See Compl. ¶ 41. Yet despite defendant's enacting CLASS just as it claimed it would,
plaintiffs were denied the opportunity to enjoy the supposed benefits of that program. It is
one thing for courts to refuse to open up an institution of higher learning to liability for any
3 Curiously, when defendant at oral argument would frequently reference the materials that can provide the
terms of the implied contracts between a student and a university, defendant omitted the word "circulars,"
despite it appearing repeatedly in New York case law. See, e.g., Keefe, 897 N.Y.S.2d at 95.
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possible breach of its commitment to "fairness" in its administrative proceedings, but using
that line of reasoning to absolve a school of its liability for not providing a program that it
claimed in circulars that it "will" provide is another matter entirely. See Faiaz, 64 F. Supp. 3d
Even still, RPI points to two cases that it believes illustrate why plaintiffs' claims should
be dismissed. The first is Paynter v. New York University, 319 N.Y.S.2d 893, 893-94 (Sup.
Ct. App. Div. 1st Dep't 1971), in which the court dismissed a breach of contract claim after the
defendant university completely shut classes down in response to civil unrest. Plaintiffs
distinguish Paynter by noting that the court in that case only reversed a lower court's ruling
that canceling a few days of in-person classes to protect the safety of its students constituted
a breach of contract. 319 N.Y.S.2d at 984. The Court agrees with plaintiff that there is a
world of difference between canceling some classes—in the absence of any affirmative
guarantee on the number of classes to be held—and not affording students services and
benefits for an extended period of time despite such a promise. Accordingly, Paynter does
not control the outcome of this case.
RPI also points to Chong v. Northeastern University. 2020 WL 5847626
(D. Mass. Oct. 1, 2020). In Chong, the District of Massachusetts dismissed a breach of
contract claim against a university for shuttering in-person classes during the COVID-19
pandemic. Id. at *2-3. Of particular importance to its decision, the plaintiffs in that case failed
to provide any promise more concrete than a document that amounted to an agreement to
pay tuition in exchange for classes. Id. at *3.
However, it bears noting that the Chong court nevertheless allowed its plaintiffs' claims
alleging a breach of contract for not refunding those plaintiffs' activity fees to proceed. 2020
WL 5847626, at *4. For their part, plaintiffs dispute Chong by arguing that their theory of
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recovery is different from that of the plaintiffs in that case, because these plaintiffs have
pointed to the Plan and the catalog as the source of specific promises of in-person instruction
on defendant's part. See id.
Plaintiffs are correct. The document that purported to establish a specific promise in
Chong only tied the payment of tuition to a student's ability to register for courses or receive
other services, without so much as mentioning whether those classes would be in-person or
what those services would be. 2020 WL 5847626, at *3. This case, by contrast, involves
precisely such a promise directed at affording an in-person program that defendant had
previously put in place and implemented. See, e.g., Dkt. 29-1 p. 13 (describing and touting
benefits of CLASS program). Accordingly, Chong is distinguishable and of little weight.
Contrary to RPI's arguments, it made some bold claims—or, plausibly, promises—
about its in-person programming and hammered repeatedly on the benefits of those
programs in an assortment of circulars and even in its catalog. As it stands, plaintiffs have
thus adequately alleged, through both the catalog and the Plan, that defendant has released
a publication expounding the virtues of its in-person programming that it ultimately did not
provide. Drawing all reasonable assumptions in plaintiffs' favor, those allegations are
sufficient for the purposes of a Rule 12(c) motion and defendant's first line of argument must
be rejected. See, e.g., Salerno v. Fla. S. Coll., 2020 WL 5583522, at *4-5
(M.D. Fla. Sept. 16, 2020) (holding that breach of contract claim should survive Rule 12
motion because defendant college's publication implied that courses would be conducted
in-person and touted the school's many resources and facilities). 4
Salerno relies on Florida law, not New York law, and thus its usefulness is of course blunted. 2020 WL
5583522, at *4-5. Nevertheless, the two legal schemes appear to be nearly identical, at least insofar as both
hinge on the school's publications providing the terms of an "implied in fact contract." See id.
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RPI's second line of argument is that "tuition" is defined as payment for instruction,
which plaintiffs received. Thus, any argument that plaintiffs make that would entitle them to a
return of their tuition payments would by necessity challenge the quality of defendant's
instruction and be an impermissible educational malpractice claim in disguise. Because New
York does not recognize educational malpractice, or claims alleging the school failed to
provide an effective education, defendant claims this argument alone settles matters. See
Papelino, 633 F.3d at 93.
But RPI's arguments about the definition of tuition again miss the mark. It may be that
tuition is defined as "payment for instruction," but defendant can hardly deny that there is
more to the contractual relationship than its argument would suggest. Paying tuition
inherently changes the applicant's status to student. That status allows a student to access a
number of resources she would be denied if she had not enrolled. Access to the school's
computers, laboratory equipment, library services, research tools, and more hinge entirely on
whether a student has paid up. In short, what a student expects to receive in exchange for
tuition money covers much more territory than simply the right to take classes.
But setting the logical pitfalls of RPI's arguments aside, the legal consequences of
adopting defendant's arguments are at least as problematic. If a plaintiff may only recover
tuition that she paid in circumstances in which the school breached a contract involving her
instruction, then once a student pays her tuition the school need only provide some
instruction to be able to keep the entire tuition figure.
So long as it teaches her anything at all, any other conceivable breach would fall into
either of two categories. On the one hand, a claim not concerning the instruction itself
would—under RPI's reasoning—not entitle the plaintiff to recover tuition because tuition is
only recoverable in instances of a denial of instruction. On the other hand, if a claim did
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contemplate a promise regarding the quality of her instruction, it would fall under the heading
of educational malpractice and thus not be cognizable under New York law. Papelino, 633
F.3d at 93.
By necessary implication, if RPI's arguments as to the nature of tuition carry the day, a
school could expressly promise anything it wished in terms of the nature of its instruction—
even in its bulletins, circulars, and handbooks—never even attempt to provide those things,
yet be perfectly insulated from a suit to recover any portion of tuition so long as it actually
provided some education to its students. New York's deference to educational institutions
cannot reach so far as to deny students any recourse for breaches of express promises.
Otherwise, the cemented rule that a university can be bound by promises in its bulletins,
handbooks, and circulars would be devoid of any avenue for a plaintiff to recover for a breach
of one of those promises because the school would be entitled to keep plaintiff's tuition
payments regardless of any breach. Keefe, 897 N.Y.S.2d at 95.
Accordingly, plaintiffs' claims seeking recompense from their tuition payments do not
by necessity fall under the heading of educational malpractice, and if plaintiffs successfully
prove out their claims of breach based on the Plan and the catalog, they will be able to
recover from RPI a portion of the amount they paid in tuition.
Because plaintiffs do not automatically transgress New York's educational malpractice
prohibition by the nature of their claims, it is worth noting further that plaintiffs' claims do not
run afoul of the educational malpractice prohibition by merit, either. Plaintiffs do not argue
that they were given inferior instruction. They similarly do not challenge the merits of RPI's
decision to shift to remote learning, which is what New York's educational malpractice rule
seeks to avoid. Cf. Papelino, 633 F.3d at 94 (noting in dismissing breach of contract claim as
disguised educational malpractice claim that academic decisions should be "left to the sound
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judgment of the professional educators"). All they argue is that regardless of fault, the value
of the on-campus experience defendant plausibly promised them is greater than the value of
the remote experience they received. That can be true even if defendant made every choice
reasonably, or even perfectly.
Which, unsurprisingly, is exactly what RPI claims that it did. Its third line of argument
cashes out to claiming that it had no choice but to shut down, and that it thus cannot be held
accountable for the financial fallout of that decision, to whatever extent it had the discretion to
decide. Yet ultimately, it bears remembering that much as defendant would make of the fact
that it was forced to shut down, that does not answer whether it or its students should bear
the cost of that outcome.
When pressed on this point at oral argument, RPI was adamant that it did not profit
from shutting down and that it felt losses just like its students did. The Court does not doubt
the veracity of this claim. A pandemic is global by definition, and few if any have escaped
hardship as a consequence. For all that, the question remains: in the event of an
unforeseeable, faultless breach, who should bear the burden for the unfulfillment of a
It therefore does not matter whether RPI could have continued to operate in-person
classes. It does not matter whether defendant's decisions were prudent or necessary. What
matters at this moment is that plaintiffs have plausibly alleged that defendant specifically
promised in its circulars a bevy of in-person academic programs that it did not provide.
Those allegations are enough to survive a motion for judgment on the pleadings.
Accordingly, because all of RPI's arguments against plaintiffs' Count I breach of
contract claim by the purported tuition class have been rejected, defendant's motion for
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judgment on the pleadings against Count I must be denied. 5 See, e.g., Rosado v. Barry Univ.
Inc., 2020 WL 6438684, at *3-4 (S.D. Fla. Oct. 30, 2020) (denying motion to dismiss because
plaintiffs' complaint properly alleged that school, not students, should bear risk for cessation
of in-person classes necessitated by COVID-19 pandemic).
Fourth, RPI argues that Count III should be dismissed because plaintiffs have not
demonstrated a specific promise on defendant's part regarding the activity fees plaintiffs paid
to it. Plaintiffs counter that argument by pointing out that according to defendant's own
catalog, the Activity Fee all students pay "carries with it Rensselaer Union membership
privileges." Dkt. 29-1, p. 68. As for what those privileges entail, that same document points
to "over 200 service, media, recreation, club sports, performing and visual arts, multicultural,
and special interest student organizations." Id. at 35. Plaintiffs have alleged that they paid
the full activity fees, yet after March they did not "have access to . . . facilities, activities,
services, or other opportunities." Compl. ¶¶ 62, 64-65. Plaintiffs have thus plausibly alleged
a breach of a specific promise. 6 Accordingly, defendant's motion for judgment on the
pleadings against Count III must also be denied.
Fifth and finally, RPI argues that it did, in fact, provide partial refunds to students to the
extent that they paid for room and board and that by extension Counts V and VII must be
dismissed. Plaintiffs do not dispute that they received a partial refund, but they do argue that
reducing refunds based on the amount of financial aid paid to students is unfair because the
amount of aid is not responsive to whether a student signs up for a meal plan or lives
Defendant also argued that plaintiffs waived their breach of contract claims for tuition beyond the spring 2020
semester by continuing to attend school, including the Arch program. But whether continuing to enroll in the
Arch and classes after the spring 2020 semester constituted a waiver of further damages or a mitigation of those
damages in place of plaintiffs' only alternative of dropping out of school altogether until the end of the pandemic
is a factual dispute unsuited to a Rule 12(c) motion.
6 To the extent defendant argues that it kept operating the Student Union and Health Center even through the
pandemic, plaintiffs have plausibly alleged that those services were at the least reduced below the threshold
defendant promised in its catalog. Compl. ¶¶ 62, 64-65. Accordingly that argument is also unavailing.
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on-campus. Instead, plaintiffs argue students are paid financial aid in a flat amount based on
their family's income regardless of whether they live on campus or purchase a meal plan.
Upon consideration, and for the purposes of a Rule 12(c) motion, the Court agrees
with plaintiffs. Because plaintiffs have plausibly alleged a promise of room and board in
exchange for their payment of the associated fees, RPI is saddled with an ongoing duty of
good faith and fair dealing in carrying out that promise. Papelino, 633 F.3d at 93.
Withholding repayment to plaintiffs for a service that they did not receive because of an
entirely unrelated consideration could plausibly violate that duty, and thus plaintiffs' claims
must survive for now. In addition, the Court is concerned that defendant's policy in fact
seems to directly target the students most in need of a refund. Accordingly, defendant's
motion for judgment on the pleadings against plaintiffs' Counts V and VII must also be
denied. Plaintiffs' breach of contract claims must proceed to discovery.
B. Unjust Enrichment (Counts II, IV, VI, and VIII).
Proving an unjust enrichment claim under New York law requires a plaintiff to prove:
"(1) that the defendant benefitted; (2) at the plaintiff's expense; and (3) that equity and good
conscience require restitution." Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of
N.J., Inc., 448 F.3d 573, 586 (2d Cir. 2006) (internal citations and quotation marks omitted).
Unjust enrichment is a quasi-contractual theory of recovery that exists in the absence of an
affirmative agreement. Id. at 586-87 (citing Goldman v. Metro. Life Ins. Co., 841 N.E.2d 742,
746 (N.Y. 2005)).
By extension, the existence of an enforceable, written contract will typically preclude a
recovery for a quasi-contractual claim, including for unjust enrichment, EUA Cogenex Corp.
v. N. Rockland Cent. Sch. Dist., 124 F. Supp. 2d 861, 873-74 (S.D.N.Y. 2000). In other
words, an unjust enrichment claim is "not available where it simply duplicates, or replaces, a
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 17 of 23
conventional contract or tort claim." Goldemberg v. Johnson & Johnson Consumer Cos.,
Inc., 8 F. Supp. 3d 467, 483 (S.D.N.Y. 2014) (quoting Corsello v. Verizon N.Y., Inc., 967
N.E.2d 1177, 1185 (N.Y. 2012)).
However, if the subject-matter of an unjust enrichment claim "is not covered by a valid,
enforceable contractual obligation," that claim is not duplicative and need not be dismissed
based solely on the existence of a breach of contract claim. See, e.g., Spirit Locker, Inc. v.
EVO Direct, LLC, 696 F. Supp. 2d 296, 305 (E.D.N.Y. 2010) (declining to dismiss unjust
enrichment claim where contract did not cover subject of unjust enrichment claim).
RPI makes two arguments in favor of dismissing plaintiffs' unjust enrichment claims.
First, it argues that these claims are duplicative of plaintiffs' breach of contract claims,
because the implicit contract between students and universities governs plaintiffs' requests
for relief. Plaintiffs counter this argument by pointing out that they are permitted to plead
unjust enrichment in the alternative because defendant disputes that a contract covers their
claims. Defendant would dispel plaintiffs' point by noting that it does not dispute the
existence of a contractual relationship between the parties, only that there exists a specific
promise entitling plaintiffs to the relief that they seek.
RPI's argument is clever, but mistaken. If defendant successfully proves that there is
no valid, enforceable contractual provision that affords plaintiffs relief, then their unjust
enrichment claim would be viable regardless of their erstwhile breach of contract claims.
Spirit Locker, 696 F. Supp. 2d at 305. In particular, plaintiffs correctly note that if defendant
successfully proves impossibility, the contract would become unenforceable, and their unjust
enrichment arguments would return to fill the gap. See H.Daya Int'l Co. v. Arazi, 348
F. Supp. 3d 304, 312 n.6 (S.D.N.Y. 2018) (dismissing unjust enrichment claim as moot only
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 18 of 23
after defendants failed to prove impossibility of contract and were found liable for breach of
RPI's second argument is a closer call. Defendant argues that plaintiffs cannot
contend that justice requires that they be reimbursed because the pandemic demanded the
end of defendant's in-person programming. Plaintiffs of course do not dispute that defendant
needed to shut down. Instead, they argue that it is unjust for defendant to keep their full
tuition payments and to discount plaintiffs' refunds based on financial aid on a net basis.
Plaintiffs' framing of the issue of what justice requires is the better one. Once again,
RPI misses the mark by viewing plaintiffs' complaint as an attack on its decision to shut down.
Plaintiffs do no such thing. Instead, plaintiffs simply call defendant to task for keeping the
money that plaintiffs paid expecting in-person instruction. For the same reasons discussed
regarding plaintiffs' breach of contract claims, defendant's alleged suggestions of the value of
its in-person programming make the injustice of defendant keeping the portions of plaintiffs'
tuition, fees, housing, and meals payments plausible. Thus, plaintiffs' unjust enrichment
claims under Counts II, IV, VI, and VIII must survive. See, e.g., Salerno, 2020 WL 5583522,
at *5 (allowing unjust enrichment claim in alternative to breach of contract claim where
defendant university needed to shut down for COVID but had implicitly promised in-person
C. Conversion (Count IX).
New York law defines conversion as "the unauthorized assumption and exercise of the
right of ownership over goods belonging to another to the exclusion of the owner's rights."
Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d Cir. 2006) (quoting Vigilant Ins.
Co. of Am. v. Hous. Auth., 660 N.E.2d 1121, 1126 (N.Y. 1995)). To prove that claim out, a
plaintiff must allege: "(1) the property subject to conversion is a specific identifiable thing;
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 19 of 23
(2) plaintiff had ownership, possession or control over the property before its conversion; and
(3) defendant exercised an unauthorized dominion over the thing in question, to the alteration
of its condition or to the exclusion of the plaintiff's rights." Moses v. Martin, 360 F. Supp. 2d
533, 541 (S.D.N.Y. 2004) (citation and internal quotation marks omitted).
However, conversion cannot enforce a simple obligation to pay money, see Ehrlich v.
Howe, 848 F. Supp. 482, 492 (S.D.N.Y. 1994) (collecting cases), unless the money is in the
form of a "specific, identifiable fund" subject to "an obligation to return or otherwise treat in a
particular manner[,]" Mfrs. Hanover Tr. Co. v. Chem. Bank, 559 N.Y.S.2d 704, 712 (Sup.
Ct. App. Div. 1st Dep't 1990). Additionally, "[a] conversion claim may only succeed if the
party alleges a wrong that is distinct from any contractual obligations." Command Cinema
Corp. v. VCA Labs, Inc., 464 F. Supp. 2d 191, 199 (S.D.N.Y. 2006) (footnote omitted).
RPI argues that plaintiffs fail to identify a property interest over which defendant
improperly took dominion. Plaintiffs respond by arguing that the tuition and fees they paid
defendant took the form of a specific fund that defendant could convert. But plaintiffs cannot
realistically argue that once that money was paid to defendant it remained intact, as opposed
to pooling in with defendant's other funding. Thus, plaintiffs have failed to allege that their
tuition and fee payments still exist as a "specific, identifiable fund" that defendant could have
converted. Chem. Bank, 559 N.Y.S.2d at 712. Defendant's motion for judgment on the
pleadings must therefore be granted as to plaintiffs' Count IX claim for conversion.
D. New York General Business Law §§ 349 and 350 (Count X).
To state a claim under §§ 349 or 350 7, a plaintiff must allege: "(1) consumer-oriented
conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the
The only meaningful difference between §§ 349 and 350 is that § 350 deals specifically with false advertising
practices. Goshen v. Mutual Life Ins. Co., 774 N.E.2d 1190, 1195 n.1 (N.Y. 2002). This is contrary to the
Second Circuit's frequent imputation of a reliance element for § 350 claims, Pelman v. McDonald's Corp., 396
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 20 of 23
allegedly deceptive act or practice." Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675,
675 (N.Y. 2012). "Deceptive acts are defined objectively[ ] as acts likely to mislead a
reasonable consumer acting reasonably under the circumstances." Boule v. Hutton, 328
F.3d 84, 94 (2d Cir. 2003) (cleaned up and internal citation marks and quotations omitted).
RPI principally argues that plaintiffs have failed to plead a materially misleading
practice on its part. Plaintiffs counter that defendant advertises that it will have on-campus
learning, and that those students reasonably expected on-campus learning to be available.
Plaintiffs also argue that there is no specific intent requirement under either § 349 or § 350.
Plaintiffs' arguments, although establishing the difference between their expectations
and reality, fail to demonstrate how defendant misled them as contemplated by the statute.
Even assuming that plaintiffs' formulation of the law is correct and there is no specific intent
requirement, plaintiffs have nevertheless failed to adequately allege that RPI committed a
deceptive act. No reasonable consumer would expect a university to remain open for
in-class instruction in the face of a pandemic and a state-mandated shutdown, regardless of
whether the school advertised on-campus learning as a strength. Boule, 328 F.3d at 94.
Accordingly, plaintiffs' arguments as to specific intent are irrelevant because they cannot
plausibly allege that they meet the objective test required of them. Id. Plaintiffs' Count X
claims under §§ 349 and 350 must therefore also be dismissed.
E. Promissory Estoppel (Count XI).
A plaintiff may establish promissory estoppel through proving three elements: (1) the
defendant's "clear and unambiguous promise"; (2) upon which the plaintiff reasonably relied;
(3) to her detriment. NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 202 (2d Cir. 2019).
Much like unjust enrichment, promissory estoppel is a quasi-contractual claim, which
F.3d 508, 511 (2d Cir. 2005), which the New York Court of Appeals has specifically identified as an error, Koch,
967 N.E.2d at 676.
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"generally applies only in the absence of a valid and enforceable contract." Bader v. Wells
Fargo Home Mortg. Inc., 773 F. Supp. 2d 397, 415 (S.D.N.Y. 2011).
However, once again, most courts have held that where a defendant disputes the
existence of a valid, enforceable contract, a plaintiff may plead promissory estoppel as an
alternative theory of recovery. See, e.g., Personal Watercraft Prod. SARL v. Robinson, 2017
WL 4329790, at *11 (S.D.N.Y. Sept. 1, 2017) (collecting cases permitting alternative pleading
of promissory estoppel and unjust enrichment).
The arguments on this point effectively rehash the parties' earlier breach of contract
arguments. RPI argues that plaintiffs do not provide a specific promise which they allege it
breached outside of the Plan, which is only a list of goals and principles. Plaintiff argues that
the Plan does provide specific promises and defendants should be held to them.
RPI has not provided any novel ground worthy of barring plaintiffs' promissory estoppel
claim distinct from those that did not allow it to prevail in dismissing plaintiffs' breach of
contract claims. The only new cases defendant cites in support of dismissing plaintiffs'
promissory estoppel claim are Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d
386, 408 (W.D.N.Y. 2017), and Prasad v. Cornell University, 2016 WL 3212079
(N.D.N.Y. Feb. 24, 2016). But neither of those cases found a specific promise to support
their plaintiffs' breach of contract claims. Rolph, 271 F. Supp. 3d at 408; Prasad, 2016 WL
3212079, at *22. This Court has found that plaintiff plausibly alleged those promises in the
Plan and defendant's catalog. Accordingly, plaintiffs have plausibly alleged a specific
promise, and their Count XI promissory estoppel claim must survive. 8
However, the possible viability of a promissory estoppel claim against a school is uncertain. Any specific
promise contained in a school's bulletins, handbooks, or circulars would presumably become part of the terms of
the implicit contract, and thus be properly cognizable as a breach of contract claim, closing the door on
promissory estoppel. Bader, 773 F. Supp. 2d at 415. Perhaps an oral promise from a school official with the
capacity to bind the school might qualify, but plaintiffs have not alleged any such promise. Under any
circumstance, the proper time to consider that question is not during a Rule 12(c) motion.
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 22 of 23
The Court understands RPI's frustration. Its shutdown was necessitated by acts of
nature and government well beyond its control. But though defendant may have been in an
impossible position, plaintiffs did not ask for their lives to be disrupted on a mass scale either.
The purpose of this litigation is not to apportion blame. It is only to ensure that the hardship
imposed by the present state of the world falls justly. To that end, plaintiffs' complaint must
proceed to discovery, with the exception of their conversion and New York General Business
Law claims under Counts IX and X, respectively.
Therefore, it is
1. Defendant Rensselaer Polytechnic Institute's Motion for Judgment on the
Pleadings is GRANTED IN PART and DENIED IN PART;
2. Plaintiffs' Count IX conversion claim is DISMISSED;
3. Plaintiffs' Count X claim under New York General Business Law §§ 349 and 350 is
4. Defendant Rensselaer Polytechnic Institute's motion regarding plaintiffs' claims
under Counts: (I) breach of contract for the purported tuition class; (II) unjust
enrichment for the purported tuition class; (III) breach of contract for the purported
fees class; (IV) unjust enrichment for the purported fees class; (V) breach of
contract for the purported housing class; (VI) unjust enrichment for the purported
housing class; (VII) breach of contract for the purported meal plan class; (VIII)
unjust enrichment for the purported meal plan class; and (XI) for promissory
estoppel across all classes is DENIED and those claims may proceed to discovery.
IT IS SO ORDERED
Case 1:20-cv-00470-DNH-CFH Document 42 Filed 12/16/20 Page 23 of 23
Dated: December 16, 2020
Utica, New York.
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